A new law for just one man

But it will catch others in its wide net

Dec 11, 2002, 7:00 PM EST

Credit: Xtra files

The feds are at it again in hot pursuit of paedophiles and kiddie pornographers everywhere, criminalizing works of the imagination that may venture into this terrain. The message of the federal government is that when it comes to child and teen sexuality – don’t even think about it.

The federal government introduced legislation last week intended to strengthen Canada’s child pornography laws. Bill C-20 does two things.

First, it broadens the definition of child pornography. Under the current law, child pornography includes sexually explicit representations of anyone under the age of 18. It also includes written material that advocates or counsels sex with children.

Bill C-20 broadens this definition by including written material that describes prohibited sexual activity with a child; that is, any sexual activity that is currently a crime.

Secondly, the new law will remove the artistic merit defence and replace it with the defence of “public good.” This means that people accused of making or possessing child pornography will no longer be able to defend themselves by saying that the material has artistic or literary merit. Instead, they will only be able to try to argue that the material serves the public. The “public good” is not defined in the bill, being left to the determination of judges on a case by case basis.

So what does all this mean? It means that the definition of child pornography just got larger, and the defences against charges of creating child pornography just got narrower. More works of the imagination will be included, and their literary or artistic merit will no longer be enough to save them from criminality. Writers and artists who explore controversial topics like child sexuality will be more likely than ever before to fall afoul of the law. Child sexuality, under this new regime, is now something that we are not supposed to even think about.

And as with all censorship laws, gay and lesbian people need to be particularly worried.

We know that pornography laws are used disproportionately against gay and lesbian materials. And we can be relatively certain that this new law is likely to be felt the hardest by those writers and artists who explore the most controversial of issues. As if child sexuality isn’t controversial enough (remember – don’t even think about it), gay child sexuality is absolutely beyond the pale.

Cynically observed, the new law is driven by a desire to get Vancouver’s Robin Sharpe, who ended up before the Supreme Court Of Canada in 2001 after police found him in possession of explicit stories and photos.

Of course, the government and those who want Canada’s child porn laws made even tougher choose to forget that they did “get” Sharpe. He was convicted on two counts of possessing child pornography. But they want to get him for his writing. But it wasn’t clear to the trial court that his writing could be said to be “counselling or advocating” sex with children. And even if it was, the Supreme Court said that there must be an artistic merit defence.

So the feds have now written a law specifically designed to get Sharpe’s writings. His “Kiddie Kink Classics” and other explicit works will fall into the new broader definition. And they will no longer have the defence of artistic merit. Sharpe will be guilty.

Now Sharpe is a controversial guy, and lots of folks don’t like his writing. But it’s a problem when a law is written to go after one particular guy. And it’s a problem when the law that is intended to go after one guy is written so broadly that it may end up including a whole bunch of other folks, like artists and writers who explore child sexuality. Bill C-20 could put people in jail for what they think, just because they choose to write it down.

Child pornography laws should focus on images that involve or appear to involve real children. Anything more than that is an invasion of our thoughts, however unpleasant those thoughts may be. Anything more than that is the government telling us: “Don’t even think about it.” Or else it’s jail.

* Brenda Cossman is a member of the board of Pink Triangle Press, which publishes Xtra.